2009 (5) TMI 65 - AT - Service Tax

Tax demand upheld for Repair Services, but extended period demand dropped due to assessee's belief

The Member (Judicial) upheld the tax demand on Repair and Maintenance Services, finding suppression of facts proven. However, the demand for the extended ... Demand and Recovery – period of limitation – held that - It has observed that the demand only in respect of Repair and Maintenance Services provided by the appellant is sustainable and the allegation of suppression of facts also stands proved on this account. In my view, it appears that the assessees were under the bona fide belief regarding the levy of tax on such activities. The Department also, after examining the facts, dropped the demand in two categories. He has also extended exemption benefit partly for the extended period of limitation. Therefore, the demand of tax for the extended period of limitation is not sustainable. Accordingly, the demand of tax is set aside on limitation. Issues:1. Demand of tax on Manpower Recruitment or Supply Agency Services, Storage & Warehousing Services, and Management, Maintenance, or Repair Services.2. Imposition of penalties under Section 78, 77, and 76 of the Finance Act, 1994.3. Contestation of tax demand based on limitation.4. Allegation of suppression of facts with intent to evade tax payment.Analysis:1. Demand of Tax on Various Services:The case involved the provision of services to a company, including RMG/EOT crane operations and manpower supply. The assessee received show cause notices for tax demands under different service categories for various periods. The Original Authority confirmed the tax demand, penalties, and imposition under different sections of the Finance Act, 1994. The Commissioner (Appeals) upheld the tax demand for Management, Maintenance, or Repair Services for specific periods and extended exemption benefits for certain years. The assessee appealed against the tax demand on Maintenance or Repair Services and penalties, while the Revenue appealed for penalties under different sections of the Act.2. Imposition of Penalties:The Commissioner (Appeals) upheld penalties under Section 78 but set aside penalties under Sections 77 and 76. The Revenue contested the penalties under Sections 76 and 77, while the assessee contested the demand of tax mainly on limitation grounds, not on merits. The Revenue argued that the assessee accepted amounts for Repair/Maintenance Services without disclosing them to the Department, indicating suppression of facts to evade tax payment.3. Contestation of Tax Demand Based on Limitation:The assessee's advocate contested the tax demand primarily on limitation grounds, stating no suppression of facts to evade tax payment. The advocate highlighted that earlier show cause notices did not allege suppression of facts and that the Commissioner (Appeals) dropped tax demands in two categories after examining the agreement between the parties.4. Allegation of Suppression of Facts:The Revenue argued that the assessee accepted payments for Repair/Maintenance Services without informing the Department, indicating suppression of facts. The Revenue contended that the absence of tax returns for Repair or Maintenance Services further supported the allegation of suppression.In the final judgment, the Member (Judicial) considered the arguments and evidence presented by both sides. After examining the records and agreements, it was concluded that the demand of tax on Repair and Maintenance Services was sustainable, and suppression of facts was proven in this regard. However, the demand for the extended period was deemed not sustainable due to the bona fide belief of the assessee and the Department dropping tax demands in two categories. Consequently, the demand of tax on limitation was set aside, and the impugned order regarding tax demands on Repair or Maintenance Services and penalties was overturned in favor of the assessee, while the Revenue's appeal was rejected.